‘We So Badly Screwed Up Our Response…’ Medical, Constitutional Experts Discuss COVID-19 Pandemic at NYSBA Presidential Summit.

By Christian Nolan

‘We So Badly Screwed Up Our Response…’ Medical, Constitutional Experts Discuss COVID-19 Pandemic at NYSBA Presidential Summit.

Annual Meeting Presidential Summit

With the current death toll in America from COVID-19 at 425,000 and climbing, Dr. Irwin Redlener says hundreds of thousands of those deaths were “unnecessary.”

“We so badly screwed up our response to COVID-19 that hundreds of thousands of Americans have unnecessarily died,” said Redlener, a pediatrician, public health activist, author, academic and advisor. “The number of people that have died is many multiples of what it should have been, and this is an American tragedy that will go down in history.”

Additionally, Redlener said a recent Penn State University study suggests that for every coronavirus-related death, the deceased leaves an average of nine loved ones behind who grieve them.

“So the emotional, social impact on our country from these horrible tragic unnecessary deaths is way more than the 425,000 deaths,” said Redlener.

Redlener said the federal government’s response to the pandemic was “ignorance and incompetence” from the outset and pointed to early March 2020 when the Centers for Disease Control and Prevention sent out test kits that didn’t work. That was followed with  contact tracing that wasn’t handled properly and the president refusing to deploy the defense production act to produce more supplies and testing equipment.

Redlener’s pointed remarks came as he served as a panelist at the New York State Bar Association’s Presidential Summit Jan. 27. The webinar examined the legal, constitutional and public health issues surrounding the coronavirus pandemic.

The panel also featured one of the nation’s top constitutional law scholars, Erwin Chemerinsky, dean of Berkeley Law. Liz Benjamin, managing director of Marathon Strategies in Albany, moderated the discussion.

Chemerinsky began his presentation by explaining the impact of Jacobson v. Massachusetts, the 1905 U.S. Supreme Court decision that upheld the authority of states to enforce compulsory vaccination laws. He said most courts during the COVID-19 pandemic have relied upon this decision and have generally ruled that coronavirus-related restrictions will be upheld as long as they are reasonable.

The constitutional expert also discussed courts’ recent handling of litigation over restrictions on religious gatherings as well as on businesses. Challenges to restrictions on capacity at religious gatherings were denied in California and Nevada, with the U.S. Supreme Court also upholding the lower court rulings. However, a similar challenge in New York was reversed on the eve of Thanksgiving last year. All of the rulings were 5-4 and Chemerinsky attributed the shift in the New York case to Justice Ruth Bader Ginsburg’s passing and Justice Amy Coney Barrett joining the court.

Overall, Chemerinsky said restrictions on businesses have been upheld, also using a rational basis test. An outlier was one ruling in Pennsylvania where the governor’s shut down orders were overturned there.

Chemerinsky expressed his disappointment at how politicized the pandemic response has been, including the courts, as decisions for or against public health restrictions seemed to go along party lines, noting the Pennsylvania ruling was made by a very conservative Trump appointed judge, and that individual state responses were quite different between “blue and red” states.

“There was a politicization of a health emergency that never should have happened,” said Chemerinsky. “What if Donald Trump in March and April (2020) said, ‘We’re all in this together. We all have to do what is necessary to stop the spread of the communicable disease. This is going to require hardship in terms of business closures. It’s going to require that we all wear a mask.’ How many lives would’ve been saved if it hadn’t been politicized in this way?

“So I hope when this is done, we’ll look back and learn the lessons,” continued Chemerinsky. “There’s certainly the chance, God forbid, of another pandemic.”

The conversation soon shifted to vaccinations and whether they can be mandated by the government or private employers.

Chemerinsky said many laws require children to get vaccinated to attend school, that many of these requirements do not include religious objections and their constitutionality is still upheld. Assuming the COVID-19 vaccines prove to be safe and effective, he thinks they, too, could be required to attend school. He noted that the Berkeley campus this year required everyone to get a flu shot. Chemerinsky said other agencies like police departments may also require all employees to get vaccinated.

If the vaccine really turns out to be 95 percent effective with a low rate of side effects, then Chemerinsky said the government, schools and employers can require people to be vaccinated, but it will be harder if they turn out to be less effective or cause worse side effects. Further, he noted that workers feeling unsafe to return to work prior to receiving a vaccine, such as those working in a meat packing plant or teachers, are on shaky legal ground to contest it.

Redlener discussed the effectiveness of the emergency-use vaccine in saving lives versus the risk of side effects that could even include death. As an example, he provided the hypothetical of needing to weigh the risk balance of 200 million people getting vaccinated and 20 deaths as a result of the vaccine versus 600,000 lives saved that otherwise may have been lost due to the virus. He said this was a social, moral and ethical question as opposed to a medical one.

“We have a grand objective to save hundreds of thousands of lives potentially,” said Redlener.

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